Welcome to the new Becker-Posner Blog, maintained by the University of Chicago Law School.

12/04/2011

Does America Imprison Too Many People? Posner

A society can be thought of as a collection of private and public systems. At present a number of these systems in American society are under stress: the medical system, the educational system (other than elite private schooling and elite university education), the political system (especially at the legislative level), the finance industry, the fiscal system (including taxation, borrowing, and spending at all levels of government), transportation infrastructure, the regulation and assimilation of immigrants, and perhaps others. In contrast, foreign affairs, the military (and national security generally), and industries such as retailing, the production of intellectual property, computer technology, and the production of pharmaceuticals and medical technology are areas of great national strength.

Another troubled American system is that of criminal justice, with particular emphasis on the astrounding growth and level of imprisonment. Some statistics: the incarceration rate had been 118 per 100,000 in 1950, and actually fell in 1972 to 93 per 100,00. By 2000 it had reached 469 and only since the advent of the economic crisis has it begun to decline as states try to reduce expenditures. Between 1950 and 2000 the white imprisonment rate increased by 184 percent and the black imprisonment rate by 355 percent; today 40 percent of prison and jail inmates are black, although blacks are only 13 percent of the overall population. Even though the U.S. crime rate fell by a third in the 1990s (and by two-thirds in many large cities)— the murder rate by more than 40 percent—the inmate population continued growing during this period, an increase that cannot be explained by population growth, since the population grew by much less than a third in the 1990s.

The inmate population started its rapid growth in the early 1970s, largely in response to sharply rising crimes rates in the 1960s, a decade of domestic unrest. In 1960 the homicide rate was 4.6 per 100,000 persons; in 1970, 7.9; in 1980, 10.2; in 1990, 9.4—but by 2000 it had dropped 5.5 and it is about the same today, which is to say that it is almost back to where it was in 1960, before crime became a big issue. Crime rates are higher than they were in the 1950s but they are tolerable, yet the incarcerated percentage of the population remains much higher now than then.

The economist Steven Levitt, after correcting for other factors that have been proposed as explanations for the decline in crime rates since 1980, has attributed the leveling of and then decline in those rates to the increase in the prison population, along with increases in the number of police, a decline (largely, it seems, independently of law enforcement) in the consumption of crack cocaine, and the legalization of abortion in the early 1970s. Legalization resulted (Levitt argues, though his statistical evidence has been questioned) in a decline in crime rates twenty years later; unwanted children are more likely to be neglected, brought up badly, and as a result get into trouble as young adults than wanted children.

The striking thing is that although the criminal sentences are considerably more severe in the United States than in our peer countries, which one expect to have a substantial deterrent effect, the percentage of the American population that is incarcerated is the highest of any country in the world—at 2.3 million, it is about .8 percent (eight-tenths of 1 percent), which is 4 to 7 times the percentage of any of our peer countries—and our crime rates are generally no lower than in those countries and our murder rate is much higher. Although we have a larger black population than those countries, and our blacks are disproportionately engaged in crime, as noted earlier, even if their crime rate were no higher than that of the rest of the population our overall crime rate would still greatly exceed that of the other countries, because it would fall by only 27 percent from its present level, or to about 1.8 million, which is .6 percent of the population, compared to its current level of.8 percent.

Long prison sentences should deter crime, or if not deter then incapacitate the criminals and thus prevent them from committing crimes (outside the prison itself) for a long period of time. We might therefore expect to have lower crime rates than our peer countries, and, given the deterrent effect of heavy sentences, lower rates of imprisonment. The fact that instead the U.S. imprison more persons in prison than foreign countries do, yet has no lower a crime rate, calls for explanation. If the demand for crime in the U.S. were no higher than in those countries, and the supply price no lower, we would expect the the United States to have a lower crime rate if it imprisons more persons. So the fact that our crime rate isn't lower requires investigation. The investigation might show for example that we criminalize more activity, which is the equivalent of increasing the demand for crime. If an activity is criminalized, this increases the amount of crime unless the criminalization of the activity drives its level to zero.

There are a number of other possible explanations for the conjunction of a high rate of imprisonment with a high crime rate. One is not enough police, or intelligent enough police, to prevent and detect crime effectively. Another is a high elasticity of supply for criminal activity, so that discouraging or preventing one person from committing crimes induces someone else to enter the crime industry. Another (suggested above) is that we define crime too broadly, criminalizing activities that in other countries are lawful; our high rate of sexual offenses against minors is a function in part of a high age of consent (18). Or we may make too little use of fines, and of regulatory and private-litigation alternatives to criminal punishment. The prevalence of gun ownership may be a factor, along with the proximity to the United States of countries in Latin America that are large producers of illegal drugs. And finally crime rates are particularly high in the southern states of the United States, and that may have deep cultural roots.

Reform is difficult when the causes of a problem are multiple or unknown. And because the direct monetary costs of the criminal justice system are not very great by current standards (only about $40 billion a year), and there is strong hostility among the general public to criminals (another cultural fact, perhaps), and because our huge prison system provides a great deal of employment, there is no pressure for reform. Yet the indirect costs of high levels of incarceration must be very great, in the form of the lost output of the large number of prisoners, most of whom are of working age.

The reason our system is capable of "convicting" and imprisoning so many citizens is directly related to the failure of the courts to insist that (1) sentencing demonstrate some relationship to actual societal harm, thereby deferring to the legislative and executive branches despite Constitutional limitations on punishment (2) the lack of any REAL representation of indigent defendants at ALL levels and branches of our system (3) criminalizing conduct in a Puritanical manner bowing to majority tyranny and religious zealots (4) our "capitalistic" dog eat dog socioeconomic system which effectively eats its young (5) idiot Judges such as Posner who believe all justice should be administered in accordance with some economic postulates (6) opportunistic unethical politicians who regularly campaign on "law and order" platforms pandering to the worst elements of our society. Is there a two tiered system of justice? Everyone knows that "crimes" committed by poor and minorities are punished far more severely than the "white collar" crimes of the white middle and upper class majorities. Much of the "crime" is related to the criminalization of marijuana and other so called "drugs" which would inflict damage only upon those who use the drugs and their immediate families IF the criminalization did not artificially decrease supply and inflate prices which then promote illegal distribution and violent crime in the same manner as prohibition during the early 20th Century. Then, when these poor minorities are arrested they are "assigned" to "defenders" who run them through the system like cattle. Just imagine if all indigent defendants demanded trial AND the law actually provided that they could not be punished for insisting upon their full Constitutional rights. The system would reverse itself immediately. The State and Feds would be begging the defenders to cut a deal in recognition that the Courts could not try all of these poor people. Instead, the defendants are usually overcharged and threatened with draconian penalties to "persuade" them to just "plead guilty and get it over with." The function of the so called "defenders" is just to "review the file", make token appearances and bash the defendant mentally into surrendering and "doing his time" which means forfeiting a substantial part of his limited life. Having watched this "system of justice" for decades, it truly turns your stomach after awhile. But people like Posner do nothing about it, just letting the poor and powerless suffer with outrageously cruel sentences for "drug offenses" which often "victimize" only those willing to participate. Posner pretends that somehow he bears no responsibility for his role in this charade. Disgusting.

Another consideration is that of the prison lifestyle. Is the lifestyle there more like a community where criminals can network, establish relationships and continue their ways or does it really work as a rehabilitation center to get people living withing the laws of our country?

Wheelie: Yep! Surely such a trend should (have) set off alarms, caused Congressional committees to form, and perhaps (heresy I know) cause at least a few "leaders" to see how the more civilized nations are achieving far better results. But! could it be the prison-industrial complex wagging the dog? Or worse?

GaaaaaaWD! In the last few days Congress has to accomplish anything it spends its time with ponyshow wanking over the silliest of "balanced budget amendments" ever.

Do they really think that riding a "wave" of 14% approval (was it McCain who deemed it "down to immediate family and paid help?) they're likely to implement a Constitutional amendment, and one that blatantly furthers the ALL FOR THE RICH agenda they no longer even try to camouflage?

Suggestion: IF they wanted to go down in history for adding an amendment surely the only possibility and one of lasting worth would be that of overturning the infamous democracy destroying "Citizens United" SC decision that allows unlimited funds to be deployed under names like "C/U" to assassinate the character of those running for office as Bush's buddy Sam Wyly did to McCain in S. Carolina 1999.

There is NO way this nation can survive the onslaught of shadowy figures and soulless global corporations deciding who is fit for office with their billions, ie. advancing the ALL FOR THE RICH agenda.

But then? We've front running Newt coming straight out with a fantastic tax cutting scheme continuing the ALL FOR THE RICH agenda that would blow another $3,000,000,000,000 hole in the budget..... unless he can take enough food out of the mouths of the working folk to "pay for it".

Jack, This reminds me of a little joke, "There was an elephant that made a trip to Las Vegas to find a candidate for his party. He thought that the best place to find one was at the banks of slot machines that lined the hallway. He put his money in and pulled the lever and put his money in and pulled the lever and he put his money in and pulled the lever once again. After spending millions of dollars, all he ever got was a row of lemons." ;)

All of the long time Republicans I know and have talked to have told me that if the election were held today, they would be forced to vote for Obama and the Democrats. Says a lot for the condition and state of the National Republican Party. As for the Congressional grid and mindlock, it's only a matter of time. Hopefully, we'll be able to survive it all...

The question "does America imprison too many people?" cannot be objectively answered without a measurement of the real costs and benefits of incarceration. Yet as you pointed out at the end of your post, these costs are often difficult, if not impossible, to measure.

We can try comparing ourselves to foreign nations, but some will always argue that America is a different country. For example, we are more racially diverse. (Do these differences make us a radically different country? who knows.)

Consciously or unconsciously, I think how we answer this question often comes down to how one subjectively perceives the whole idea of criminal punishment: do we prefer mercy? or vengeance? When there is nothing else better to rely on, maybe this is a legitimate approach.

NEH.. Ha! And it would seem many decent Americans who happen to identify with the Republican Party....... perhaps during a better era? will have to do the same.

Ziran: At magnitudes like locking folks up at 5 or more times the rates of "similar" nations......... it's certainly a target rich environment for identifying waste and inhumane policies.

"Vengeance?" Perhaps retribution in the case of property crimes, but in prisons full of people having something related to drugs?

BTW the oft quoted "eye for an eye" stemming from biblical times in a part of the world, then and now, engaging in overly harsh punishments? A hand for a loaf of bread? The thief crucified next to Jesus? Could it have been a call for lesser penalties? What is a craftsman or farmer to do with but one hand?

Recently in a discussion of education the speaker mentioned being able to tell by zipcode the likelihood of a decent education....... then what appears to be common between the 50% "blacks" and the 50% "white" prison population is a literacy rate in the low 20% in a nation claiming less than 10% illiteracy in the population as a whole. With "we" who allow such disparity of educational outcomes bearing some of the fault?

Ahh yes... The Code of Hammurabi. "An eye for an eye and a tooth for a tooth". If applied rigoursly enough, the whole world will end up toothless and blind. Is this what we want out of our Penal Code? Retribution or Reform, tough question. I much prefer Penal Servitude. At least the criminal may learn a marketable skill...

"An eye for an eye and a tooth for a tooth". If applied rigoursly enough, the whole world will end up toothless and blind. Is this what we want out of our Penal Code?"

............ as for a choice? Like any problem, illness of the individual or society as a whole if we put our energies and talents toward healing and reform we're A. VERY likely to learn more about the causes and B. develop better means of reforming the individuals...... and the societal flaws that contribute the US locking up its fellow citizens at five or more times the rate of the more civilized nations.

I'd agree that society has to be protected from stuff like WS thieves, mass terrorists and murderers who must be segregated in order to protect the public.

BTW there seems to be a trickle of WS thieves headed for prison terms.. not nearly the rate it should be but an encouraging beginning.

Recently in a discussion of education the speaker mentioned being able to tell by zipcode the likelihood of a decent education....... then what appears to be common between the 50% "blacks" and the 50% "white" prison population is a literacy rate in the low 20% in a nation claiming less than 10% illiteracy in the population as a whole. With "we" who allow such disparity of educational outcomes bearing some of the fault?

............ as for a choice? Like any problem, illness of the individual or society as a whole if we put our energies and talents toward healing and reform we're A. VERY likely to learn more about the causes and B. develop better means of reforming the individuals...... and the societal flaws that contribute the US locking up its fellow citizens at five or more times the rate of the more civilized nations.